Citation Nr: 0533692
Decision Date: 12/14/05 Archive Date: 12/30/05
DOCKET NO. 03-11 257 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for urethritis.
2. Entitlement to service connection for a low back
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael Martin, Counsel
INTRODUCTION
The veteran had active service from February 1947 to March
1951.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a decision of July 2001 by the
Department of Veterans Affairs (VA) St. Petersburg, Florida
Regional Office (RO). A hearing was held before the
undersigned Veterans Law Judge in June 2005.
FINDINGS OF FACT
1. Development of the record is sufficiently complete to
permit a fair and just resolution of the issues on appeal,
and there has been no prejudicial failure of notice or
assistance to the appellant.
2. Chronic urethritis was not present during service, and a
current urinary system disorder did not develop as a result
of any incident in service.
3. A chronic low back disorder was not present during
service, arthritis of the spine was not manifest within a
year after service, and a current low back disorder did not
develop as a result of any incident in service.
CONCLUSIONS OF LAW
1. Chronic urethritis was not incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R.
§ 3.303 (2005).
2. A low back disorder was not incurred in or aggravated by
service, and arthritis of the spine may not be presumed to
have been incurred in service. 38 U.S.C.A. §§ 1101, 1110,
1112, 1113, 1131, 1137 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.303, 3.307, 3.309 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Preliminary Matter: Duty to Assist
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000). The new law redefines the
obligations of the VA with respect to the duty to assist
claimants in the development of their claims. First, the VA
has a duty to notify the claimant and his representative, if
represented, of any information and evidence needed to
substantiate and complete a claim. 38 U.S.C.A. §§ 5102 and
5103. Second, the VA has a duty to assist the claimant in
obtaining evidence necessary to substantiate the claim.
38 U.S.C.A. § 5103A. The VA has promulgated revised
regulations to implement these changes in the law. See
38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a)).
In Mayfield v. Nicholson, 19 Vet. App. 103 (2005), the United
States Court of Appeals for Veterans Claims (Court) held, in
part, that a VCAA notice consistent with 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the
claimant about the information and evidence not of record
that is necessary to substantiate the claim; (2) inform the
claimant about the information and evidence that VA will seek
to provide; (3) inform the claimant about the information and
evidence the claimant is expected to provide; and (4) request
or tell the claimant to provide any evidence in the
claimant's possession that supports to the claim. See also
Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini
II). This "fourth element" of the notice requirement comes
from the language of 38 C.F.R. § 3.159(b)(1).
The Board finds that each of the four content requirements of
a VCAA notice has been fully satisfied. The veteran was
provided adequate notice as to the evidence needed to
substantiate his claims. The Board concludes the discussions
in the rating decisions, the statement of the case (SOC), the
supplemental statement of the case (SSOC) and letters sent to
the veteran informed him of the information and evidence
needed to substantiate the claims and complied with the VA's
notification requirements. The SOC and SSOC included
summaries of the evidence that had been obtained and
considered. The SOC and SSOC also included the requirements
that must be met to establish the benefits. The basic
elements for establishing these benefits have remained
unchanged despite the change in the law with respect to duty
to assist and notification requirements. The communications,
such as letters from the RO dated in May 2001, September 2003
and March 2005 provided the veteran with a specific
explanation of the type of evidence necessary to substantiate
his claims, as well as an explanation of what evidence was to
be provided by him and what evidence the VA would attempt to
obtain on his behalf. See generally Quartuccio v. Principi,
16 Vet. App. 183 (2002). The May 2001 letter from the RO
specifically advised him that he should send the RO the
evidence needed as soon as possible. Thus, the fourth
element is satisfied. The VA has no outstanding duty to
inform the appellant that any additional information or
evidence is needed.
The Board notes that in Mayfield, the Court, citing Pelegrini
v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II), noted
that a VCAA notice must be provided to a claimant before the
initial unfavorable [agency of original jurisdiction (AOJ)]
decision on a service-connection claim. The veteran's
initial VCAA letter was provided in May 2001 which was prior
to the adjudication of his claim in July 2001.
The Board also finds that all relevant facts have been
properly developed, and that all evidence necessary for
equitable resolution of the issue on appeal has been
obtained. The service medical records have been obtained.
The RO obtained all relevant evidence identified by the
veteran. The record includes his current post service
treatment records. The veteran has had a hearing. The Board
does not know of any additional relevant evidence which is
available but has not been obtained. For the foregoing
reasons, the Board concludes that all reasonable efforts were
made by the VA to obtain evidence necessary to substantiate
the veteran's claims. Therefore, no further assistance to
the veteran with the development of evidence is required.
In the circumstances of this case, a remand to have the RO
take additional action under the new Act and implementing
regulations would serve no useful purpose. See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to
requirements in the law does not dictate an unquestioning,
blind adherence in the face of overwhelming evidence in
support of the result in a particular case; such adherence
would result in unnecessarily imposing additional burdens on
the VA with no benefit flowing to the veteran); Sabonis v.
Brown, 6 Vet. App. 426, 430 (1994) (remands which would only
result in unnecessarily imposing additional burdens on the VA
with no benefit flowing to the veteran are to be avoided).
The VA has satisfied its obligation to notify and assist the
veteran in this case. Further development and further
expending of the VA's resources is not warranted. Taking
these factors into consideration, there is no prejudice to
the veteran in proceeding to consider the claims on the
merits. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).
Service Connection
Service connection may be granted for disability due to
disease or injury incurred in or aggravated by service. See
38 U.S.C.A. §§ 1110, 1131. If a chronic disorder such as
arthritis is manifest to a compensable degree within one year
after separation from service, the disorder may be presumed
to have been incurred in service. See 38 U.S.C.A. §§ 1101,
1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
Service connection connotes many factors but basically it
means that the facts, shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service in the Armed Forces, or if
preexisting such service, was aggravated therein. This may
be accomplished by affirmatively showing inception or
aggravation during service or through the application of
statutory presumptions. Each disabling condition shown by a
veteran's service records, or for which he seeks a service
connection must be considered on the basis of the places,
types and circumstances of his service as shown by service
records, the official history of each organization in which
he served, his medical records and all pertinent medical and
lay evidence. Determinations as to service connection will
be based on review of the entire evidence of record, with due
consideration to the policy of the VA to administer the law
under a broad and liberal interpretation consistent with the
facts in each individual case. 38 C.F.R. § 3.303(a).
With chronic disease shown as such in service (or within the
presumptive period under Sec. 3.307) so as to permit a
finding of service connection, subsequent manifestations of
the same chronic disease at any later date, however remote,
are service connected, unless clearly attributable to
intercurrent causes. This rule does not mean that any
manifestation of joint pain, any abnormality of heart action
or heart sounds, any urinary findings of casts, or any cough,
in service will permit service connection of arthritis,
disease of the heart, nephritis, or pulmonary disease, first
shown as a clear-cut clinical entity, at some later date.
For the showing of chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"Chronic." When the disease identity is established
(leprosy, tuberculosis, multiple sclerosis, etc.), there is
no requirement of evidentiary showing of continuity.
Continuity of symptomatology is required only where the
condition noted during service (or in the presumptive period)
is not, in fact, shown to be chronic or where the diagnosis
of chronicity may be legitimately questioned. When the fact
of chronicity in service is not adequately supported, then a
showing of continuity after discharge is required to support
the claim. 38 C.F.R. § 3.303(b).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. Presumptive periods are not intended to
limit service connection to diseases so diagnosed when the
evidence warrants direct service connection. The presumptive
provisions of the statute and VA regulations implementing
them are intended as liberalizations applicable when the
evidence would not warrant service connection without their
aid. 38 C.F.R. § 3.303(d).
Urethritis
The veteran reported in his hearing testimony that he has a
urinary disorder which had its onset in during service. He
reported that he was treated for a venereal disease during
service, and that he has intermittently experienced burning
on urination since that time.
The veteran's service medical records show that he was
treated for acute urethritis in July 1948. He was given
tablets of sulfathiazole. The next day, it was noted that he
had no urethral discharge. He was instructed to continue the
medication. A few days later, it was again noted that he had
no urethral discharge. It was also noted that no further
treatment was indicated. A record dated in January 1950
reflects a diagnosis of chancroid of the penis which had been
present for 11 days. Treatment consistent of an ointment and
sulfonamides internally. Routine lab tests were negative.
He was discharged as fit for duty. It was noted that he was
to have a blood test once monthly for a period of four
months. The veteran later underwent a circumcision in March
1950.
The report of a medical examination conducted for the purpose
of his separation from service shows that the history of the
above referenced treatment for genitourinary disorders was
noted, but examination of the veteran's genito urinary system
showed that he had no venereal disease and no significant
abnormalities. Laboratory tests included a Kahn which was
negative.
The earliest post service reference to a urinary disorder is
dated many years after separation from service. In a
statement in support of claim dated in December 2000, the
veteran raised a claim for service connection for urethritis.
However, there is no medical opinion, or other competent
evidence, linking a current urinary disorder with any in-
service occurrence or event. Specifically, there was no
mention of any chronic symptoms in service, nor has any
medical examiner attributed a current condition to the
veteran's active service. Thus, a direct causal link between
the veteran's claimed disorder and any incident in service
has not been demonstrated.
The Board has noted that during the hearing held in June
2005, the veteran recounted that episode of urethritis during
service, and stated that he had burning on urination
intermittently since that time. Although the veteran is
competent to testify as to the symptoms which he has
experienced, he is not qualified to render a medical opinion
that the current symptoms are attributable to the same
underlying disease which was noted approximately 55 years
earlier in service. The Court has held that lay persons,
such as the veteran, are not qualified to offer an opinion
that requires medical knowledge, such as a diagnosis or an
opinion as to the cause of a disability. See Espiritu v.
Derwinski, 2 Vet. App. 492, 494-5 (1992).
In summary, the evidence shows that chronic urethritis was
not present during service, and a current urinary system
disorder did not develop as a result of any incident in
service. Accordingly, the Board concludes that chronic
urethritis was not incurred in or aggravated by service.
Low Back Disorder
The veteran reported in his hearing testimony that he has a
low back disorder which had its onset in during service. He
reported that he was given spinal anesthesia and that this
caused him to develop chronic back pain.
The veteran's service medical records show that he received
spinal anesthesia in January 1948 during a hemorrhoidectomy.
However, neither that record nor any subsequent record
indicates that the veteran developed back pain as a result.
The report of a medical examination conducted for the purpose
of the veteran's separation from service shows that the spine
was normal.
The earliest post service medical record containing such a
reference to back pain is dated many years after separation
from service. A VA medical treatment record dated in
November 2000 shows that the veteran reported a complaint of
low back pain which he said he been present since 1948. The
record does not contain any medical opinion linking the pain
to service. The fact that the veteran's own account of the
etiology of his disability was recorded in his medical
records is not sufficient to support the claim. In LeShore
v. Brown, 8 Vet. App. 406, 409 (1995), the Court held that:
Evidence which is simply information
recorded by a medical examiner,
unenhanced by any additional medical
comment by that examiner, does not
constitute "competent medical
evidence"...[and] a bare transcription
of a lay history is not transformed into
"competent medical evidence" merely
because the transcriber happens to be a
medical professional.
There is no medical opinion, or other competent evidence,
linking a current back disorder with any in-service
occurrence or event. Specifically, there was no mention of
any chronic symptoms in service, nor has any medical examiner
attributed a current condition to the veteran's active
service. Thus, a direct causal link between the veteran's
claimed disorder and any incident in service has not been
demonstrated.
In summary, the evidence shows that a chronic low back
disorder was not present during service or manifest within a
year after service, and did not develop as a result of any
incident during service. Accordingly, the Board concludes
that a low back disorder was not incurred in or aggravated by
service, and arthritis of the spine may not be presumed to
have been incurred in service.
ORDER
1. Service connection for urethritis is denied.
2. Service connection for a low back disorder is denied.
______________________________________________
J. E. DAY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs